AI – a divergent approach to regulation emerges

In what has been a strikingly busy time for AI headlines around the world, on Friday 30 September, Tesla unveiled its new prototype robot "Optimus" in the US. While closer to home on Wednesday 5 October, the European Commission unveiled a draft Directive dealing with AI liability and compensation, following hot on the heels (from a regulatory perspective at least) from the publication of the draft EU AI Act last summer which set up a number of different categories of AI (from use cases which should be prohibited, to those which are high risk and which will be heavily regulated, then everything else).

In unveiling "Optimus", Elon Musk referred to it as a "fundamental transformation of civilisation as we know it" as part of a venture which he has claimed could one day be "more significant than the vehicle business". Musk has also in the past referred to AI as a "fundamental risk to the existence of human civilisation" and, while saying that the technology should be developed with safety in mind, has also called for an AI regulator to police developments in this area.

While perhaps no stranger to hyperbole, these claims bear a striking resemblance to Stuart Russell's warning in 'Human Compatible – AI and the Problem of Control' (published in 2019 and widely regarded as one of the most important books on AI over the past few years – and also a very good read by the way) that success in the field of super intelligent AI "would be the biggest event in human history….and perhaps also the last event in human history". It also follows a whole host of other warnings and recommendations from scientists and academics involved in AI research and development around the need for regulation.

Meanwhile, back in the UK, the UK Government published (on 18 July) its own proposals on the future regulation of AI (taking a notably less centralised approach than the EU) with a view to publishing a White paper at some point this Autumn in which it will table more detailed proposals for consultation.

Then the Secretary of State for Digital, Culture, Media and Sport (Michelle Donelan), announced at the Conservative party conference a plan to replace the GDPR – part of a patchwork of existing regulations which cover the use of AI (such as protections around being subject to autonomous decision making and access to information around how decisions have been made) and which has, to date, been referenced in the context of the UK taking a different path from the EU. 

So different, in fact, that the UK Government is proposing a principles-based approach without central regulation and which would then need to be interpreted by the regulators with oversight of different sectors (such as the Financial Conduct Authority, Information Commissioner's Office, Competition and Markets Authority and Ofcom) - who themselves then cooperate under the aegis of the UK's Digital Regulation Cooperation Forum.

Crossing back over the Atlantic, in contrast, the Biden government shows signs of taking a similar regulation based approach in the US to that being taken in the EU. See commentary from our colleagues in WBD US for more here.

So what does this mean in relation to the use and regulation of a technology which has become such a part of everyday life without seemingly so much as a second glance by its users as to how spectacularly smart it already is? 

For those of us working in technology for decades, there are echoes of the slightly chaotic birth of cloud computing and the lack of interoperability between technologies (which of course to some extent still exists despite the prevalence of the use of published APIs to feed information between systems), not to mention the regulations involved. So this seems like an opportune moment to recap how the land lies ahead of the further regulatory developments expected both here in the UK and in the EU this Autumn. 

See the high level summary below which aims to illustrate the different approaches in play:

With first mover advantage being seen to be important as far as shaping future regulations is concerned (whether you prefer to call that the Brussels or California effect) - not to mention the global nature of the technology being used as well as those developing it - the EU and US seem to be converging towards a regulation based approach with a view to setting the standards in this space. Whereas in contrast, the UK Government - led by a policy objective of seeking to retain flexibility in a proportionate way – seems to be heading down a more fluid path based on overarching principles which can then be interpreted on a case-by-case basis.

It's impossible to tell which approach is right and whether either will be able to address the biggest questions around the potential impact which AI could ultimately have on us all. What is clear, however, is that we will need to keep track of how each part of the jigsaw is emerging as it's impossible to think that technology of this kind can be constrained by geographic boundaries. 

It's also not hard to envisage that if defined regulation emerges at an EU and US level, a typical compliance approach might be to take the higher gold standard as the rules, then work back from there (much as seems to have been the case with the EU GDPR and the way in which it has been used as a starting point for many other jurisdictions as well as businesses). In practice, if those more prescriptive rules then also satisfy whatever principles based approach emerges in the UK, businesses might find it easier to work to the EU standards instead.

Whatever happens, in practice those developing AI technology, as well as those using and relying on it (meaning pretty much all of us), will for the time being need to find a way of meeting a patchwork of different emerging regulations until a more settled regulatory approach emerges. That is of course unless the emergence of super human AI takes that out of our hands first.

More focussed updates will follow, but in the meantime, please contact any member of the Digital team here at Womble Bond Dickinson if you would like to know more about the impact of AI regulation on your business.